Hyder and Minister for Immigration and Citizenship
[2011] AATA 172
•3 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2452
GENERAL ADMINISTRATIVE DIVISION ) Re Mr Tanveer Hyder Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal M D Allen, Senior Member Date3 March 2011
PlaceSydney
Decision For the reasons given orally at the conclusion of the Hearing of this matter, the decision under review is SET ASIDE and REMITTED to the Respondent with the direction that the Applicant is of good character.
....................[sgd]......................
M D Allen, Senior Member
CATCHWORDS
IMMIGRATION: Application for grant of Australian citizenship by conferral refused. Applicant has criminal convictions. Seriousness of offences; any ongoing sentence obligations; and length of time since last offence considered. Demonstrated a pattern of good behaviour. Decision under review set aside and Applicant found to be of good character.
LEGISLATION
Australian Citizenship Act 2007, Ss 21(4)(f)
CASES
Shi and Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
3 March 2011 1. At the conclusion of the hearing of this matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Applicant and Respondent of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested that the Tribunal furnish to them a statement in writing of the reasons of the Tribunal for the decision.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reason for the Tribunal’s decision.
I certify that this and the following paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.
Signed: ..........[sgd]........................
K. Lynch, AssociateDate of Hearing 3 March 2011
Date of Decision 3 March 2011
Date of Written Reasons 16 March 2011
Representative for the Applicant Mr T Hyder (self)
Representative for the Respondent Mr S Moloney, Clayton Utz.
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
MR ALLEN: The basis of the refusal is set out in the decision of the delegate of 7 May 2010, and the crux reads:
“Mr Hyder’s criminal history indicates that the 12-month bond imposed on 18 March 2009 would have expired in March 2010. I find it is approximately six weeks since the conclusion of his bond. Citizenship policy states that a reasonable amount of time will need to have passed since the applicant has been free of obligation to the court to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character. I do not consider six weeks to be a reasonable amount of time. I do not believe a reasonable period of time has passed since he has been free of the obligation to the court to establish a pattern of good behaviour.”
The delegate continued:
“In the light of the above assessment, I am not satisfied that Mr Hyder is of good character for the purposes of subsection 21(2)(h) of the Act. That particular subsection referred to the requirement that, at the time of the Minister’s decision whether to grant Australian citizenship or not, the person must be of good character. The term “good character” has been referred to in several cases but I would simply refer to Minister for Immigration and Ethnic Affairs v Baker (1997)73 FCR 187 which referred to the earlier matter of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, namely that good character should be understood as a reference to the enduring moral qualities of a person.”
The decision that the Applicant was not of good character was based upon two series’ of convictions. The first of those was on 17 February 2004, when the Applicant was convicted of shoplifting and sentenced to a $300 fine. That offence appears to be some three years after the Applicant arrived in Australia. In his evidence, or rather the material before the Tribunal, the Applicant says that he went to Woolworths to exchange some goods. Exchange was refused, so he deposited the goods which he had brought back and took substitute goods. In many ways, as of today that conviction could well be regarded as spent.
More serious however are events which occurred in December 2008. It would appear that the Applicant was subject to a random breath analysis, and when being informed that he was arrested because he had – to use the vernacular – blown 0.06, and therefore above the prescribed concentration of alcohol (“PCA”) in his blood, he panicked and drove off. As a result of those events, on 18 March 2009 the Applicant was convicted of the following offences:
- driving a vehicle recklessly, overly furiously, or speed/manner dangerous;
- drove with low range prescribed concentration of alcohol; and finally,
- resist/hinder police in the execution of their duty.
On the first count, he was fined $500, with a 15 month licence disqualification and 60 hours of community service. For the second count, he received six months’ licence disqualification, and for the third, namely resisting police, he received 12 months’ good behaviour bond. The circumstances of the offence were alluded to by the Applicant’s solicitor when he appeared at the Local Court at Manly. The solicitor pointed out that the Applicant was going through a difficult time due to the breakdown of his marriage. I point out that there is evidence of that breakdown, being Exhibit A5, and it would appear that the Applicant and his wife, whom he had known back in Bangladesh and who had joined him in Australia in 2004 and lived with him since that day, separated on 6 December 2008.
The Applicant said that the reason for the separation was that he became aware of his wife’s continuing infidelities. In sentencing the Applicant, or rather reverting to what the solicitor said of the offences, the solicitor said:
“He was assisting his friends and then this brain explosion, in my words, that occurred. He’s extremely remorseful.”
The Applicant himself gave the explanation that he had panicked. He didn’t know what had happened.
In sentencing the Applicant, Magistrate Quinn said,
“I accept that you were panicking, and I accept what has been said on your behalf by Mr Conaghan. I accept that and I accept what’s in the pre-sentence report here but, in the future, it’s like a lot of things. Sometimes things happen, and we just have to take what is before us, and in moving on from a low-range PCA, which is not the most serious matter, now you are charged with a very serious matter.
Her Honour added significantly:
“In relation to specific deterrents, I do not think there is much need in your case, from what Mr Conaghan has said, and it is an aberration, and also that you were, have not anything else like that on your record before,so I accept that perhaps your mental state at the time may have affected you to such an extent that you were not thinking properly, and in that case there is not a great need for specific deterrents.”
Her Honour, of course, then had regard to the need for general deterrents, hence the imposition of the sentence.
In these proceedings, the Applicant has produced documents which evidence the fact, not only that he is gainfully employed, but he has been gainfully employed by a large retail chain for quite some period of six years, I think it is. And, that he is an apparently valued employee who has obtained promotions. He is now, according to the evidence, a customer service manager. There are references from managers of that retail chain, and although there has been some criticism that it is only from a more recent manager, the reference does set out the history of the applicant. The employer apparently does not know of the offences, and that might qualify the references to some extent, but they can’t take away from the fact that he apparently is an employee who is well thought of, and has been promoted.
So far as the offences are concerned, and the sentencing, it would appear – and there has been no evidence to the contrary – that he successfully completed the 60 hours’ community service, which I understand was done at a high school operating as a lab assistant, and then he successfully completed the 12-month good behaviour bond. As said, there are now 12 months after the bond, and there is no material before me which would indicate that the Applicant has offended in any other way.
It would seem that he is a hard-working person. His involvement in the community, it would seem, is not through any clubs, association etc., but rather he assists his employer with community events because the employer as part of, no doubt, of its public relations policy, indulges in certain community events and fundraising, etcetera, and he takes an active part in that. He is a regular attendee at his local mosque. Some of the other references can be criticised, in that they are of friends and acquaintances of the applicant. However, Exhibit A3 is a statutory declaration from a Mr Restan, who, although a neighbour of the Applicant, was aware of the driving under the influence charge when he made his statutory declaration, and more to the point, is a solicitor, so that I take from the nature of his profession, he would be particularly cautious in any statutory declaration which he made and which he knew was to be used for legal purposes.
In Shi and Migration Agents Registration Authority (2008) 235 CLR 286, in a judgment which was unanimous on this point, the High Court stated that, subject to the specific legislation, that it is open to this Tribunal to make its assessment of what might be the correct preferable decision on the material available to the Tribunal at the date it makes its decision. Mr Maloney, for the Respondent, has said everything that could possibly be said in support of the Respondent’s position. However, as I see it here today, the Applicant has successfully completed the 12 months’ good behaviour bond, and has not offended in any ways in the 12 months after the completion of that bond.
He is apparently well thought of by his employer, and I must say, on the presentation here today, he did not unfavourably impress me as a person. I accept that he is remorseful. I can understand, with very good reasons, why he hasn’t told his father of the offences, and I don’t regard that as being to his detriment. All in all, on the material before me, I am satisfied that he is of good character. There is nothing before me on the other requirements of the Australian Citizenship Act, so that the decision of Tribunal will be that the decision under review is set aside and this matter remitted to the respondent for consideration for the Applicant’s application of Australian citizenship in accordance with these reasons.
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